509.01(b)(2)    To Introduce Newly Discovered Evidence

If a party files a motion to reopen its testimony period to introduce newly discovered evidence, the moving party must show not only that the proposed evidence has been newly discovered, but also that the evidence could not have been discovered earlier through the exercise of reasonable diligence. [ Note 1.] However, even if a sufficient showing of due diligence has been made, the Board will not automatically reopen a party’s testimony period for introduction of the new evidence. The Board must also consider such factors as the nature and purpose of the evidence sought to be brought in, the stage of the proceeding, and prejudice to the nonmoving party. [ Note 2.]

NOTES:

 1.   Harjo v. Pro-Football, Inc., 45 USPQ2d 1789, 1790 (TTAB 1998); Lutz Superdyne, Inc. v. Arthur Brown & Bro., Inc., 221 USPQ 354, 360-61 n.11 (TTAB 1984); Rowell Laboratories, Inc. v. Canada Packers Inc., 215 USPQ 523, 529 n.2 (TTAB 1982) (improper to attempt to introduce newly discovered evidence by way of rebuttal testimony rather than moving to reopen testimony period); Oxford Pendaflex Corp. v. Rolodex Corp., 204 USPQ 249, 254 n.5 (TTAB 1979); Tektronix, Inc. v. Daktronix, Inc., 187 USPQ 588, 589 n.1 (TTAB 1975), aff’d, 534 F.2d 915, 189 USPQ 693 (CCPA 1976); Wilson Sporting Goods Co. v. Northwestern Golf Co., 169 USPQ 510, 511-12 (TTAB 1971); Chemetron Corp. v. Self-Organizing Systems, Inc., 166 USPQ 495, 499 n.6 (TTAB 1970); United States Plywood Corp. v. Modiglass Fibers, Inc., 125 USPQ 144, 145 (TTAB 1960).

 2.   L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1886-87 (TTAB 2008) (the Board declined to reopen applicant’s testimony period after the briefs had been filed because (1) the newspaper article sought to be introduced into evidence was not probative of opposer’s intent to abandon its mark and (2) an abandonment claim could only be entertained through a counterclaim to cancel opposer’s registration which would be prejudicial to opposer at such a late date); Harjo v. Pro-Football, Inc., 45 USPQ2d 1789, 1790 (TTAB 1998) (newly discovered evidence was cumulative and redundant and did not have significant probative value to justify further delay of case) (newly discovered evidence was hearsay in nature and pertained to unpleaded defense) (citing Canadian Tire Corp. Ltd. v. Cooper Tire & Rubber Co., 40 USPQ2d 1537, 1539 (Comm’r 1996)).